How do you react when you see TUPE in a bid?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) protects the rights of employees when their work transfers to a new employer. This article does not seek to provide employment or legal advice but instead focuses on 7 important considerations you need to make when preparing to manage TUPE within your bid process.

  1. Before Bid Sign On 

Before committing to the bid you need to be aware of the TUPE liabilities and responsibilities for the winning bidder.  Can you live with these?  Some examples are: the presence of final salary pension benefit employees; trade union recognition; pay and conditions, etc.

  1. After Bid Sign On 

You should try to get as much information as possible on the TUPE list supplied by the client or you may need to contact the incumbent service provider.  If sufficient information is not forthcoming at this stage of the process you can ask the client to consider a bid based on TUPE assumptions.  It may be worth considering whether to insert a rider that allows you to re-submit pricing once you have the full TUPE information.

  1. During the Bid 

Will there be TUPE staff with this contract?  It is not always evident in the client issued document, so you will likely want to satisfy yourself on this point e.g. through a clarification question to the client and / or an enquiry to the incumbent service provider.  If information seems insufficient, use the clarification question process to highlight your concerns to the client – they may be able to use the terms of their existing contract to elicit further information from the current service provider.

  1. Writing the Bid 

When you write your bid you should set out your response to integrating TUPE staff into your business.  Perhaps your bid is reliant upon the skills and abilities of TUPE transferred staff.  However, what if the most skilled members do not transfer?  How will you deliver the service?  This needs to be clearly set out.  If you do not provide the necessary assurance to the client, then don’t be surprised if they minimise their risk by remaining with their existing service provider.

  1. Providing Evidence 

Evidence is a powerful tool in gaining the client’s confidence and minimising risk.  This is true when considering TUPE within your bid.  Can you provide examples of how you have already dealt successfully with TUPE transfers? Including integrating the staff in to your organisation?  Providing solid evidence or case studies will help put you in a strong position and reassure the client you will successfully manage TUPE within the contract.

  1. Client Expectations

Unless the client is currently delivering the contract in house, they will expect to take a hands-off approach to TUPE.  Most clients view TUPE as something to be ‘sorted out’ between the outgoing and incoming contractors.

  1. Managing PR 

It is important to recognise that how you manage TUPE can become newsworthy.  Clients will need to feel your suggested approach is not one that could expose them to a risk of adverse publicity.  If you are awarded this contract, you may be planning substantial redundancies but it will be important to provide assurance that you have taken all applicable factors into account.

Finally, it can be tempting to avoid bids with a TUPE element.  However, if you have aspirations to considerably grow your business through tendering, then TUPE will likely present itself sometime soon.

For more information and details on how to get your bid strategy reviewed please go to: